State v. Neville
| Decision Date | 15 November 1911 |
| Citation | 72 S.E. 798,157 N.C. 591 |
| Parties | STATE v. NEVILLE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Alamance County; Daniels, Judge.
Richard Neville was convicted of larceny, and appeals. Affirmed.
Where a witness has been impeached, evidence of declarations similar to his testimony given at the trial is admissible in corroboration.
The defendant was indicted in the court below for the larceny of a mule, the property of Walter Shepherd. The mule was last seen by its owner the fourth Sunday night in August, at about sundown, and it was not missed from the stable until the next day at about 4 o'clock a. m. He was found by Shepherd several weeks afterwards, near Martinsville, Va., with a saddle belonging to W. L. Spoon and a bridle belonging to the defendant, who lived with Spoon. After the mule was stolen the defendant left home.
John Cole, a witness for the state, who had been convicted of receiving the mule from the defendant, knowing it to have been stolen, testified: That the defendant came to him when he was working for one Joe Cobb, and told him that he wanted him to assist in some horse trading. Cole at first said he could not go, but finally assented, and it was agreed that he would meet the defendant on the following Sunday, which he failed to do, but they did meet afterwards at Burlington on the night the mule was stolen. They rode in a buggy to a bridge over the creek, which is two miles from the home of W L. Spoon, the brother-in-law of the defendant and an uncle of Cole, and three miles from the house of the prosecutor, from whose stable the mule was taken. Cole, being on unfriendly terms with Spoon, refused to go nearer the house than the bridge, and stopped there to wait for the defendant's return; the defendant having told him that he was going to get a mare and a colt which he had in Spoon's barn. When the defendant returned, he had a mule, which was identified as the one taken from the stable of Shepherd that night. The defendant told Cole to take the mule and trade or sell it and he could have all over $50 that he could get for it. The defendant at the same time gave him a pistol to carry with him for protection, and $2.50 in money, and suggested that it might not be a bad idea for him to change his name after he had left with the mule, in order that he might not have any trouble. Cole took the mule to Virginia and sold him, receiving $5 in cash and a note for $60. On his return he told the defendant what had been done, and gave him the pistol which had been borrowed and $2.50 in money. A few days after Cole's return from Virginia, the defendant went to see him, and told him that a warrant had been issued for him for stealing the mule, and advised him to "hit the bushes." He asked Cole for the pistol, and it was given to him. There was evidence tending to show that the prosecutor traced the mule from his home to the bridge by tracks which were made both by the mule and the man who had taken him, which tracks were made by the same number of shoes as those worn by the defendant. The defendant introduced evidence tending to contradict the witness for the state, and to show that he was not at the bridge with Cole on the night the mule was stolen, nor at any other time, and each side introduced testimony in corroboration of its witnesses. It was admitted on the trial that the mule had been stolen from Shepherd, but the defendant denied that he was the thief, and offered evidence as to his good character.
There was a verdict of guilty, and from the judgment thereon the defendant appealed.
Parker & Parker and Long & Long, for appellant.
Attorney General Bickett and Geo. L. Jones, Asst. Atty. Gen., for the State.
WALKER J. (after stating the facts as above).
We will have to deal, in this case, largely with the question as to the nature of the evidence and its legal significance, and it is therefore necessary to examine the testimony introduced by the state and the defendant in order to ascertain if, in any view of it, the defendant was entitled, without asking for them, to special instructions upon the law relating to recent possession and circumstantial evidence. We do not think the case called for specific instructions of the kind defendant now contends should have been given. The evidence, when properly viewed, tended either to acquit or convict the defendant without the necessity of any special consideration of the probative force of recent possession or of evidence by circumstances. The proof on the part of the state, briefly stated, was that the defendant and Cole, his nephew, it must be understood being younger than he was, and naturally under his influence, had agreed, at the defendant's solicitation, to meet at a certain place for the purpose of trading horses, but really with the design of stealing the mule, as the gravely suspicious circumstances strongly indicate. They met in Burlington, according to agreement, or by accident, which makes no difference, and drove in a buggy to the bridge over the creek two miles from W. L. Spoon's and three miles from the prosecutor's home. There was evidently a conspiracy to steal the mule, and that would seem to have been the sole object of the journey, the swapping of horses being a mere sham or pretense, as the jury apparently found it to be. The defendant left John Cole, the state's witness, and went to W. L. Spoon's home, where he got a saddle and bridle. He then went to the stable of the prosecutor and got the mule and rode him to the meeting place at the bridge, where he told Cole that he had swapped the colt for the mule. He then sent Cole on his way to Virginia with the mule, for the purpose of selling or trading him, armed him with a pistol for protection, and supplied him with money for the journey, and when he returned, after the sale of the mule, he received a part of the money and the pistol from Cole. Upon this statement of the facts we do not see how the defendant could have been benefited by a charge from the court as to the weight which they should give to the fact of recent possession. If Cole told the truth and the jury believed him, the possession of the mule by the defendant was about as recent as it was possible for it to be, but the judge, instead of instructing the jury that, owing to its nature, the law raised a presumption of guilt from such a possession, he told the jury that they should consider it as only a...
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